Richmond & D. R. Co v. Dudley.1

• Decision Date: 16 November 1893
• Citation: 18 S.E. 274,90 Va. 304
• Court: Virginia Supreme Court
• Parties: RICHMOND & D. R. CO. v. DUDLEY.1

18 S.E. 274

90 Va. 304

RICHMOND & D. R. CO.

v.DUDLEY.¹

Supreme Court of Appeals of Virginia.

Nov. 16, 1893.

Injury to Railroad Employs — Contributor Negligence—Disobedience of Orders.

1. The conductor of a freight train, contrary to the rules of the company, allowed certain cars to be shifted and run down grade without an engine attached. Subsequently, while the conductor was between said cars, a brakeman, without objection from the conductor, caused another car to run down in the same way, which, by reason of defective brakes, could not be controlled, and struck the first cars with such violence that the conductor was injured. Held, that there was no cause of action against the company.

2. Railroad companies have a right to presume that cars delivered to them by connecting lines are in proper condition.

3. Conductors of freight trains, who are required by the rules of the company to inspect all cars which they pick up in transit, cannot maintain actions for injuries caused by their failure to do so.

Error from circuit court, Culpeper county.

Action by David Dudley against the Richmond & Danville Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error. Reversed.

Wm. H. Payne and J. C. Gibson, for plaintiff in error.

F. L. Smith and Edmund Burke, for defendant in error.

FAUNTLEROY, J. The petition of the Richmond & Danville Railroad Company represents that it is aggrieved by the verdict of the jury, and the judgment of the circuit court of Culpeper county thereon, rendered on the 25th of March, 1892, in a suit pending in that court, in which one David Dudley is plaintiff and the petitioner is defendant. A transcript of the record, including a certificate of all the evidence adduced before the jury at the" trial, is exhibited. After the evidence was all in, a multitude of instructions were presented upon both sides, some of which were granted to plaintiff and defendant. The jury rendered a verdict for the sum of $9,000 damages against the defendant, which verdict the defendant moved the court to set aside, because the verdict was contrary to the law and evidence, because of misdirection by the court, because the verdict was excessive, and because of misconduct on the part of the jury; which said motions the court overruled, and entered judgment upon the verdict. A demurrer to the declaration the court had likewise overruled. it appears from the record that on the 12th of December, 1889, the plaintiff below, (defendant in error here,) a freight conductor in the employ of the defendant company, was conducting a freight train from Charlottesville to Alexandria. At Culpeper, an intermediate station, he received a telegraphic order to shift certain stock cars then in and upon a side track of the defendant's road, north of its station at Culpeper, to another side track of the defendant, south of its station at Culpeper, and also to take into his train a certain car, loaded with spokes, which was in and upon the side track north of Culpeper. The conductor (Dudley) who received this order directed his men, including a brakeman named Munday, to go and shift the cars; and he addressed himself to the undertaking of the removal of a car which obstructed a street in the town of Culpeper. The men whom he bad ordered and sent to shift the cars attempted to effect the shifting by dropping them down the track without the grasp or control of the engine, and his attention was called to the fact that two of the cars so dropped down the track were running down the grade without any one upon them, —running "wild, " in railroad parlance. The conductor, Dudley, pursued, overtook, and stopped these cars, and was in between them, endeavoring to get a coupling pin out of the drawhead of one of them, when Munday, whom he had sent to do the shifting, removed the wooden chock from under the car loaded with spokes as it stood at the head of the grade, where it had been left when pushed out of the siding, and put his shoulder to start it, when it went down the grade, gathering momentum so rapidly that it got beyond the control of the brake, and ran with great velocity and violence against the cars which Dudley had stopped, and caught and mashed and severely hurt him between the cars, where he had placed himself in the endeavor to extricate the coupling pin, as aforesaid; whereupon he exclaimed: "My God, Munday, you have killed me! How often have I told you about this before." Dudley was an old conductor, with 22 years' experience in railroad service. He was engaged at the time of his injury in his regular and appointed work, which he was paid to perform. By the rules of the company, which were placed in his hands in the form of a regular book, and by special orders, constantly repeated, he was instructed generally and particularly as to his duties. He represented the company, commanded the crew and the train, and was responsible for the protection of the company's property. By the rules of the company, as well as ex necessitate, a train once launched upon its career must be under the absolute control of one person, whom all connected with the conduct of the train are in duty bound to obey. The law requires and approves this order and discipline. See Moon v. Railroad Co., 78 Va. 745-750; Johnson's Adm'r v. Railroad Co., 84 Va. 713, 5 S. E. 707; Ayers' Adm'x v. Railroad Co., 84 Va. 679, 5 S. E. 582; Railroad Co. v. Rudd, 88 Va. 648, 14 S. E. 361. Proper rules must be made, and the conductor must obey and...